Sam Nickam v Commonwealth of Australia (represented by the Department of Human Services) T/A Department of Human Services

[2019] FWC 3513

[2019] FWC 3513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sam Nickam
v
Commonwealth of Australia (represented by the Department of Human Services) T/A Department of Human Services
(C2019/854)

COMMISSIONER YILMAZ MELBOURNE, 21 MAY 2019

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 8 February 2019, Mr Sam Nickam (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant was engaged by the Department of Human Services (the Respondent) on 9 April 2018 through All Graduates and Interpreting and Translating (All Graduates) (a language services agency) and had been allocated work while on the Department of Human Services (DHS) Register of Interpreters (the Register). The Applicant was on the Register since 8 April 2013. It was unclear when the Applicant’s services were first engaged by DHS directly or through All Graduates.

[2] It was not disputed that the Applicant through his own business was engaged as a contractor by DHS, either as a result of his placement on their Register or via All Graduates.

[3] Following an instruction by the Respondent to All Graduates to not refer the Applicant for interpreting services, any further work placements with the Respondent ceased effective 27 September 2018. Email correspondence to the Applicant from All Graduates further affirmed that all DHS sessions scheduled for October and November 2018 had been removed and the Applicant was informed not to attend any further DHS sessions. The email from All Graduates stated that “DHS has sole discretion to remove an interpreter from service”. It was not disputed that all work between the Applicant and the Respondent ceased in September 2018, whether engaged through All Graduates or the DHS Register. Further, it was not contested that any commitments already booked beyond 27 September 2018 had been cancelled.

[4] In addition, the Applicant was removed from the Register on 2 January 2019. This removal was communicated in writing, and occurred after the Respondent emailed the Applicant a “Notice of Concern” (Notice) on 10 December 2018. This Notice invited a response from the Applicant. The Applicant provided a response to the Notice the following day. In the response, the Applicant challenged his alleged conduct referred to in the Notice and relied on by the Respondent. The Applicant’s response also complained about conditions for interpreters including placement of interpreters in a “confined” room surrounded by mobile phones, inadequate or insufficient induction, a lack of appreciation and alleged bullying conduct among other allegations. 1 The Respondent subsequently confirmed removal of the Applicant from its Register by email on 2 January 2019.

[5] The s.365 application to deal with contraventions involving dismissal was filed with the Fair Work Commission (Commission) on 8 February 2019. The application was filed 37 days after the Respondent removed the Applicant from its Register of Interpreters, and 134 days after All Graduates terminated further engagement of the Applicant with the Respondent. It was also 134 days after all booked engagements with DHS were cancelled. The application was therefore filed outside of the 21 day time limit.

[6] On 17 April 2018, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application. The parties provided material in support of their respective positions prior to the hearing.

[7] General protections applications involving dismissal must be made within 21 days. Section 366(2) allows the Commission to extend the time for lodgement if satisfied there are exceptional circumstances, taking into account all of the considerations in s.366(2).

[8] The Respondent raised jurisdictional objections to an extension of time on the grounds that the general protections provisions apply to employees and the Applicant was not an employee, further, they contended that s.365 is not enlivened as the Applicant was not dismissed due to him not being an employee. The Respondent was incorrect to argue that general protections only apply to employees. Neither the Respondent nor the Applicant advanced any further submissions regarding the application of the general protections provisions to contractors.

[9] Despite the contentions above, the Commission cannot dismiss a s.365 application on the basis of a finding that the Applicant was not dismissed. 2 However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[10] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations under s.366(2).

The reason for the delay

[11] The Applicant argues he was informed of his dismissal sometime in January 2019 (in one of his submissions he refers to February) 3 however claims the dismissal took effect from 27 September 2018.4 The Applicant was vague concerning dates and provided no reliable information to confirm when the Applicant may have contacted various organisations to lodge a claim. He did reiterate that he made numerous calls and emails to the DHS, his supposed attorney, his family doctor, the former Minister for Human Services, the Ombudsman (although the Applicant does not specifically refer to the Fair Work Ombudsman) and that these events ultimately led him to the Commission.

[12] It was evident that the Applicant was aware that his appointments for interpreting services at DHS were cancelled on 27 September 2018. On 2 January 2019, the Applicant emailed the Respondent in response to the written notification of removal from the DHS Register. In that correspondence, the Applicant takes issue with the fact he was notified of his removal from the DHS Register months after being informed from All Graduates that he would no longer be receiving interpreting placements at DHS. The correspondence also states that the Applicant intended on taking the matter “to the Court for defamation [or] to the Commission for unfair dismissal” 5.

[13] On 9 January 2019, the Applicant filed an application for an unfair dismissal remedy under s.394 of the Act. In the application, the Applicant claimed he was engaged by DHS on 9 April 2018 and his alleged dismissal took effect on 27 September 2018. The application was withdrawn on 14 January 2019 after the Applicant was informed by staff of the Commission that he hadn’t met the minimum employment period under s.382 of the Act. The Applicant’s general protections application was lodged 25 days after the Applicant withdrew his unfair dismissal application.

[14] In Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd  6 a Full Bench of the Commission noted that the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.7

[15] I am not persuaded that the Applicant has established an acceptable reason for the delay other than for the period of 9 – 14 January 2019, in which he submitted his unfair dismissal application in the Commission. This consideration therefore weighs against the granting of an extension of time.

Steps taken to dispute the termination

[16] The Applicant argues he took steps to challenge his termination and made several attempts at contacting Centrelink staff to challenge his dismissal. His response to the DHS “Notice of Concern” was submitted as an attachment to the Respondent’s outline of submissions. I refer to the Applicant’s response in paragraph [4] of this decision.

[17] The Applicant reiterated that he made numerous calls and emails to the former Minister for Human Services appealing for support to overturn his dismissal, to receive apologies from various Centrelink employees or for the purpose of obtaining an alternative remedy. It was noted that the Applicant disputed his alleged dismissal to various parties; however, he did not action his application in the Commission pursuant to s.365 until February 2019. Relevant to this consideration is the fact that the Applicant had lodged in this same Commission, an unfair dismissal application in January, and then withdrew that application.

[18] Therefore, this consideration does not weigh in favour of granting an extension of time.

Prejudice to the employer

[19] The Applicant submits that the decision of the Respondent prejudiced his opportunity to earn an income and that his appointments were cancelled without any form of compensation.

[20] Repeated communications or instructions to his alleged attorney which were conveyed to the Respondent, suggested to the Respondent that an application of some kind would be forthcoming, despite a lack of detail of the type of claim. 8 The application under these circumstances would not prejudice the employer, nor would the delay in making the application. I consider this to weigh in favour of granting an extension of time.

Merits of the application

[21] The Applicant did not make out the merits of the contravention of s.340 of the Act. In submissions and in the Form F8 application, the Applicant alleges to have been subject to unfair or unfounded criticism. The reasons included intimidating a person, rudeness, wearing black jeans, failing to wear his security tag and parking in the staff car park.

[22] The Respondent submits that the Applicant did not articulate the protected characteristic to successfully argue a contravention of a protection.

[23] The Respondent relies on evidence to sever the contract for services concerning the conduct of the Applicant. The Respondent in their material identifies events in June, July and September 2018 in which the Applicant’s conduct was called into question. 9

[24] Those events were identified in the “Notification of Concern” dated 10 December 2018, which was sent to the Applicant for a response. The correspondence stated that failing receipt of a satisfactory answer, the Applicant may be removed from the DHS Register.

[25] It appeared to me that the Applicant would have difficulty establishing both the contravention and the adverse action taken by the Respondent. In these circumstances I question the merits of the s.365 application and consider this to weigh against a granting of an extension of time

Fairness between the person and other persons in a like position

[26] Neither party addressed the Commission in respect of this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[27] Based on the above considerations and the evidence presented, I have concluded that the Applicant has not substantiated exceptional circumstances warranting an extension of time for his application to deal with a contravention involving a dismissal. The application is dismissed.

COMMISSIONER

Appearances:

S Nickam on his own behalf

J Woodard for the Respondent

Hearing details:

2019

Melbourne, Canberra

17 April (video hearing)

Printed by authority of the Commonwealth Government Printer

<PR708542>

 1   Respondent’s Form F8A at attachment C.

 2   Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Vido Digital[2013] FWCFB 6321 at [14].

 3   Correspondence from the Applicant of 16 April 2019.

 4   Applicant’s Outline of Argument filed 9 April 2019 at [1.2].

 5  Respondent’s Outline of Argument filed 15 April 2019 at attachment F.

 6   [2018] FWCFB 901.

 7 Ibid at [39].

 8   Respondent’s Outline of Argument filed 15 April 2019 at question 1e; attachment F.

 9   Respondent’s Form F8A at attachment B.